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A View of Risk Management from the Plaintiff's Side Lawyer Who Specializes In Suing Lawyers Gives Advice On How To
Stay Out Of Trouble Many lawyers fear him - a lawyer who earns his living suing other lawyers for malpractice. Others know him as an all around well-respected guy. But love him or hate him, Christopher Hoge sees first hand what gets lawyers into legal trouble. Hoge, an AV-rated lawyer based in Washington, D.C., has agreed to share his insights with Lawyers Weekly USA as a way to help lawyers avoid the humiliation of occupying the defendant's chair in a legal malpractice suit. He has been practicing since 1975 and was elected as president of the Bar Association of the District of Columbia from 1998-1999. His other areas of practice include criminal law, civil litigation and professional negligence. What percentage of your practice is devoted to suing lawyers? I'd say at this point, probably 30 or 40 percent of my practice is devoted to representing plaintiffs in legal malpractice cases. It's a little hard to be exact about that, because I have a lot of cases. What are some of the more reoccurring complaints that get lawyers into trouble? What gets lawyers in trouble with clients is not necessarily what
gets the lawyers into trouble with me. What, then, are some of the things that lawyers may want to keep in mind to avoid legal trouble? Number one, it's really important to give your client the idea that you really care about their case and that this is not just a way for you to make money off of them, but that you really are concerned and that you are really trying to help them and to give them value for the fees that they are being charged. If a client really believes in you and you are truly committed to working with a client and to solve a problem - whether it's a criminal problem, an injury problem, a divorce problem, a person who's died and you need to probate the estate problem - whatever problem it is, that client wants to think that they're not just pouring money out and they've got nothing to show for it, but they've got somebody who's on their side, who is fighting on their behalf to come up with the best possible solution to the problem for a reasonable fee. What will get the client to me is a belief that the lawyer is more concerned about their own fee and their own success in the profession rather than helping the client to solve the problem. That's what's probably the most important. I think the second most important, in terms of what happens if you do get sued, is to be aware that all the documents and all the notes that you make are part of the record that will be discovered. Can you suggest ways for lawyers to be a bit more prepared for their records to be scrutinized?
How important is it to talk to colleagues when a lawyer is handling a difficult case? I think it's real important. I know it's real helpful to me. The call I just got has to do with a situation I've never had before. It's a psychiatric malpractice case. It's a strong case where the person was given the wrong kind of medication and all sorts of horrible things happened to him. He sued his psychiatrist, and then what happened was the doctor's insurance company has gone into bankruptcy. The issue is, what do we do now because the doctor's insurance company is not paying for the lawyer to defend the doctor? I've been practicing 29 years. I've never had that happen. I'm not quite sure what to do about it, so what I'm going to do is get on a listserv I belong to and I'm going to put out a query and say, 'Hey, I've just had a situation come up. Has anybody heard of anything like this?' And I'm sure I'll get some answers. If I didn't do that, if I decided I could try to do this myself, I could miss a serious deadline, or I could make a mistake and not do the right thing. I see situations almost every day that I've never seen before or I don't quite know how to deal with. I'll walk around my partners' office or, if one of my partners handles that kind of case, I'll pick up the phone and call somebody I know, or I'll send something out on the listserv. I think it's very important. Can you describe your first case as a plaintiffs' malpractice lawyer? I did my first legal malpractice case in 1986.
It was called Pickett, Houlong & Berman v. Haislip, and it
was a divorce case. My client was married to a rather wealthy
lawyer and businessman who,
in addition to being a wealthy lawyer, was the president of a small
bank and also had a lot of real estate investments. Does suing lawyers affect referrals from other lawyers for other types of legal work? It's been very interesting. I was really concerned about it at first that maybe I would be shunned in the courthouse and every time somebody saw me, they would walk on the other side of the hallway. But it really has not worked that way at all. Quite the contrary, I think that the legal profession realizes, as the medical profession should have some time ago, that there's a need for self-policing, that if we don't police ourselves, somebody else is going to step in and start policing us. So I guess I'm sort of the self-appointed cop. To make it even more interesting, there are about three or four law firms in the D.C. area that do virtually all the legal malpractice defense work and, having now done 80 to 100 of these cases, I've gotten to know them all pretty well. People will come in seeing they do legal malpractice work thinking that they represent plaintiffs, and they have to quickly say, 'No, we actually represent the lawyers who get sued, but we know a lawyer who does represent plaintiffs. Call up Chris Hoge.' So, I would say a fair number of cases that I've gotten have been referred to me by lawyers who have been on the other side of legal malpractice cases. It doesn't sound like you have to advertise too much. I don't advertise. I never have advertised. All my business either comes from old clients or lawyers that I know, and I would say most of the legal malpractice cases I take come from lawyers that I know. Strangely enough, I have even had referrals from lawyers that I have sued. I think the reason for it is my approach. I'm not out to bust anybody's chops any more than they ought to be busted. I like to see a fair resolution. I don't try to over exceed my reach. I try to get something that is fair to both sides. Virtually all the cases I take are pretty clear-cut. I'm pretty careful about not taking bogus lawsuits. I think I know a good lawsuit from a bogus lawsuit, and I think when I bring these claims, the lawyers on the other side know that they've done something wrong, and they are happy to have somebody civilized who's not hounding them to the ends of the earth for an unreasonable settlement. I just want something reasonable for my client. A lot of people have told me they appreciate that. What kinds of things do you consider when evaluating whether a lawsuit is bogus or not? You've got to have a substantial loss - substantial economic losses as a result of what happened. One of the things that is very difficult to do is that I frequently will get people who come in with complaints with their lawyers. When I look at the cases, it's clear to me that the lawyers have done a bad job, but the underlying case - the case that they hired the lawyer for in the first place - was a shaky case to begin with. It's not clear that they would have won the case even if the lawyer had done an incredibly good job, so the first thing I have to look at is whether or not the case that was handled was a case that should have been won, and how much should have been won. Can you give me an example?
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What gets the lawyers into
trouble with the client is not communicating with the client, not
returning phone calls, blowing them off when they ask questions
about their cases, being arrogant. The other thing that will get
me a client is if they feel like a lawyer has overcharged them,
and the lawyer sues them for a fee. Nothing will get a client into
my office faster than if they got sued for a fee by a lawyer that
they don't think did a good job. But that's not going to be enough
for me to take the case. As much as I think it's terrible that
a lawyer doesn't return phone calls, or a lawyer doesn't give information
about the case to a client, that's not legal malpractice. What
I'm looking for is: Was there a good case there to begin with,
and did the case get blown because the lawyer didn't do his or
her job? 
I think people need to take many more notes than they do. I know
I take a huge number of notes. Every time I'm on the phone with
somebody, I write down the date, who I'm talking to, the beginning
time, the ending time, and a description of what we discussed.
I don't have a particularly good memory, and if someone asked me,
'did you talk to a client John Brown last April 16 about his accident
case?' There would be no way in the world I could remember that
without finding my notes on the subject. But I can guarantee you
that if I talked to John Brown last April 16 about his accident,
I'd be able to look in his file, I'd be able to find a note, and
I'd be able to tell you pretty much what we talked about and how
long we spent discussing it. So, number one, it's important to
keep notes. It's a good way of organizing yourself and making sure
you're staying on top of things. Secondly, it's a good way that,
if you do get sued, and you're in a deposition and somebody's asking
you why you did or didn't do something, you'd be able to refer
to those notes and give a good precise answer, whereas without
the notes, you wouldn't be able to do that. Number three is calendaring.
We are a deadline business. The obvious deadline that is of most
concern is the statute of limitations, but there are plenty of
other deadlines that people miss: deadlines to file motions; deadlines
to take discovery; deadlines to file 
appeals. The reason people
miss those deadlines is because they don't write those deadlines
down on their calendars, and even if they have it in their calendars,
they don't always look at their calendars. I've had times where
I've had dates staring me in the face and I just don't even look
at it. I just forget to. But you have to look. You've got to be
disciplined about that - disciplined and organized. I think a lot
of people make mistakes because they're not organized. They keep
putting things to the back of their desk, maybe they don't put
a piece of paper in the right file, and they don't have an action
to-do list, and that piece of paper sits at the bottom of the pile,
and by the time it comes up for air, it's too late to do anything
about it. Missed deadlines I think, statistically, is the largest
area where mistakes are made. 
The case essentially
involved a failure to do discovery - a failure to send out interrogatories,
a failure to take depositions, a failure to subpoena documents
- to get a full understanding and extent of the husband's assets
with the result that the woman came out with considerably less
than she should have. The reason for that was that her lawyer,
a man by the name of Berman, and the lawyer for the husband were
old friends. In fact, Mr. Berman had worked as a law clerk for
the husband's lawyer years before that, and so he would correspond
with this other lawyer and basically say, 'So what does the husband
have?' Hence, the other guy would say, 'Oh, he doesn't have too
much. Just a little bit of this, a little bit of that,' - and based
on that, this lawyer went back to the woman and said, 'Well, you're
not going to get too much out of this. You should just settle for
a small amount.' She agreed to settle and then realized afterward
that she had gotten bad advice. Long story short, it was a week-long
trial, but the jury did agree that Mr. Berman had committed malpractice.
Then Mr. Berman made the bad mistake of filing an appeal. We won
the case on appeal. It got published by the Maryland Court of Special
Appeals and what happened was it set some precedents in the area
of legal malpractice. The judge who wrote the opinion for the Court
of Appeals started going around Maryland teaching the case as an
example of how not to do a divorce case. So the case became widely
known and, as a result of that, I became widely known as one of
the few lawyers around here who would be foolish enough to sue
another lawyer. One thing led to another and now I have people
lined up out the door wanting to sue their lawyers. 
For example, a traffic accident case for somebody who claims they
were injured by somebody who ran a red light, and the lawyer misses
the statute of limitations. That's a case worth taking if the person
was seriously injured and would likely have won hundreds of thousands
of dollars. Maybe there was a paralysis, or a really bad back injury
or brain injury, or something like that, and the only reason why
they didn't get hundreds of thousands of dollars was because the
lawyer misses the statute of limitations. That's a good case. On
the other hand, if it's a little fender bender, and the only thing
you have is a little whiplash, and the person went to the doctor
three times and has $500 in medical bills, that case is not worth
$5,000. Even though the lawyer may have botched the case, that's
not worth it for me to take the case, because the most I could
ever get is $5,000. Most of these cases are handled on the contingency
fee basis, so a third of $5,000 doesn't cut it for the amount of
work I have to do, because these cases do take a great deal of
work.
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